Month: August 2017

In 2010, Craig Fugate wrote about Benilda Caixeta, “who was paralyzed from her shoulders down. [S]he was one of many residents of New Orleans, Louisiana, still trying to evacuate when Hurricane Katrina struck on August 29, 2005. But despite her repeated calls to the local transportation system that served people with disabilities, as well as to 911, help never arrived. She was found dead in her apartment several days later, floating next to her wheelchair.”

Mr. Fugate had both humanitarian and professional reasons to mourn Ms. Caixeta. At the time he wrote this CNN opinion piece, he was the director of FEMA.

He also wrote, “Monday marks the 20th anniversary of the Americans with Disabilities Act. As we celebrate this historic law, which delivered civil rights to millions of Americans, we must also acknowledge how far we still have to go to live up to the law’s promise — especially when it comes to planning for disasters and protecting the vulnerable such as Benilda Caixeta.”

Among other things, Mr. Fugate mentioned that for both the Katrina and Hugo hurricanes, “many children and adults with disabilities were turned away from shelters. Blind and deaf residents did not have access to critical information about where to go or how to get assistance. Services that are required under ADA and other disability rights laws were not provided. And many disabled evacuees developed serious – but preventable – health conditions.”

Seven years later, we are celebrating the 27th anniversary of the Americans with Disabilities Act and are watching Houston as it seems to slowly sink under the fury of Hurricane Harvey. We have also seen some inspirational scenes of “ordinary people” steering their canoes towards people in stress (some of whom were wheelchair users) and rescuing them.

But there was also an unbelievable news item yesterday about 18 stranded nursing home residents, sitting waist-deep in flood water. The owner’s son-in-law finally tweeted out a photo showing how alarming the situation had become, and everyone was saved. (It’s refreshing, for once, to see a positive tweet with a positive outcome!).

Nancy Stack worked for a Walmart store in Illinois. She was also a cancer survivor and had some residual physical limitations.

Cancer unquestionably meets the definition of “disability” under the Americans with Disabilities Act (ADA). The ADA also requires that upon request, an employer “accommodate” an employee’s disability, as long as such accommodation does not create an “undue hardship.” Accordingly, Ms. Stack asked Walmart to give her a modified schedule and to also arrange for her to have a chair in her work area.

Ms. Stack alleged that although Walmart had initially agreed to this, it revoked this agreement “for no stated reason.” She no longer got the schedule change, and she had to fetch her own chair from elsewhere in the store (which was difficult because of her physical limitations). And as if this wasn’t enough, Ms. Stack also alleged that a co-worker harassed her by calling her a “cripple” and a “chemo brain.”

Ms. Stack sued Walmart, for both failing to accommodate her and allowing the co-worker cruelty to happen. The case was settled last December, with Walmart agreeing to pay $75,000.00 to settle Ms. Stack’s claim.

There is a great deal that we will never know about this case. In particular, we will never know if Ms. Stack would have been able to prove all of her claims in court. She did make it through the first hurdle, though – the EEOC investigated her claim and thought there was enough there to merit filing a lawsuit on her behalf. In addition, it seems to me that $75,000.00 is quite a bit to pay if this were just a “nuisance” claim.

But this case resonated with me. I investigated EEOC claims for many years, and I saw numerous situations where although it could not be proven that the employer technically violated the law, there was seemingly needless misery on all sides. This was often brought about by the parties simply refusing to listen to each other. Difficult as this may sometimes be, many employers have learned the hard way that listening to their employees can be much easier (and cheaper) than having to listen to EEOC investigators.

The Americans with Disabilities Act (ADA) prohibits most businesses that are open to the public from discriminating against individuals because of disability. The ADA defines these businesses as “places of public accommodation” and they are required to make their facilities accessible to people with disabilities, as long as this does not “fundamentally alter” the business or result in an “undue burden” to the business.

The ADA was enacted in 1990, when defining “place” was a simple matter: It was a physical location of some kind. This was before computers and cell phones permeated our daily lives, and before so much business was conducted on the Internet. It is not surprising, therefore, that there has been a lot of pressure on the courts to expand their rather outdated way of defining that term.

Enter Juan Carlos Gill, an individual who was blind and wanted to use a grocery store’s website to do his shopping. But because the store (Winn-Dixie) did not have the special software necessary for him to read the computer screen, he was unable to do so. Mr. Gill then sued Winn-Dixie and in June 2017, the court ruled that the store’s website was in fact a “place” because it was so interconnected to the physical stores and operated as a “gateway to the physical store locations.” The court also determined that Winn-Dixie had violated the ADA by not making that place (its website) accessible.

This case is considered a landmark, because it’s the first time a federal trial judge has stated that a website is in fact a “place.” No wonder they say that the wheels of justice grind slowly!